V. Jefferson to Montmorin
Paris June 20. 1788.
Having had the honor of mentioning to Your Excellency the wish of Congress that certain changes should be made in the articles for a consular convention which had been sent to them, I have now that, conformably to the desire you expressed, of giving a general idea of the alterations to be proposed.
The IVth. article gives to consuls the immunities of the law of nations. It has been understood however that the laws of France do not admit of this: and that it might be desirable to expunge this article. In this we are ready to concur, as in every other case where an article might call for changes in the established laws either inconvenient or disagreeable.
After establishing in favour of consuls the general immunities of the Law of nations, one consequence of which would have been that they could not have been called upon to give testimony in courts of justice the Vth. article requires that, after the observance of certain formalities which imply very high respect, they shall make a declaration; but in their own houses [chez eux] as may be pretended, if not justly inferred, from the expressions in the article. But our laws require indispensably a personal examination of witnesses in the presence of the parties, of their counsel, the jury and judges, each of whom has a right to ask of them all questions pertinent to the fact. The first and highest officers of our government are obliged to appear personally to the order of a court to give evidence. The court takes care that they are treated with respect. It is proposed therefore to omit this article for these particular reasons as well as for the general one that the IVth. being expunged, this, which was but an exception to that, falls of course.
The VIIth. VIIIth. Xth. and XIVth. articles extend their preeminences far beyond those which the laws of nations would have given. These articles require that declarations made in the presence of consuls, and certified by them, shall be recieved in evidence in all courts whatever: and in some instances give to their certificates a credibility which excludes all other testimony. The cases are rare in which our laws admit written evidence of facts: and such evidence when admitted, must have been given in the presence of both parties and must contain the answers to all the pertinent questions which they may have desired to ask of the witness. And to no evidence of whatever nature, written or oral, do our laws give so high credit as to exclude all counter-proof.
These principles are of such antient foundation in our system of jurisprudence, and are so much valued and venerated by our citizens, that perhaps it would be impossible to execute articles which should contravene them. Nor is it imagined that these stipulations can be so interesting to this country as to balance the inconvenience and hazard of such an innovation with us. Perhaps it might be found that the laws of both countries require a modification of this article, as it is inconcievable that the certificate of an American consul in France could be permitted by one of its courts to establish a fact the falsehood of which should be notorious to the court itself.
The VIIIth. article gives to the consuls of either nation a jurisdiction in certain cases over foreigners of any other. On a dispute arising in France between an American and a Spaniard or an Englishman, it would not be fair to abandon the Spaniard or Englishman to an American consul. On the contrary the territorial judge, as neutral, would seem to be the most impartial. Probably therefore it will be thought convenient for both parties to correct this stipulation.
A dispute arising between two subjects of France, the one being in France and the other in the United States, the regular tribunals of France would seem entitled to a preference of jurisdiction. Yet the XIIth. article gives it to their consul in America, and to the Consul of the United States in France, in a like case between their citizens.
The power given by the Xth. article of arresting and sending back a vessel its captain and crew is a very great one indeed, and in our opinion more safely lodged with the territorial judge. We would ourselves trust the tribunals of France to decide when there is just cause for so high-handed an act of authority over the persons and property of so many of our citizens, to all of whom these tribunals will stand in a neutral and impartial relation, rather than any single person whom we may appoint as Consul, who will seldom be learned in the laws, and often susceptible of influence from private interest and personal pique. With us, applications for the arrest of vessels and of their masters are made to the Admiralty courts. These are composed of the most learned and virtuous characters in the several states, and the Maritime laws common to all nations, is1 the rule of their proceeding. The exercise of foreign jurisdiction within the pale of their own laws, in a very high case, in a case wherein those laws have made honorable provision, would be a phaenomenon never yet seen in our country, and which would be seen with great jealousy and2 uneasiness. On the contrary to leave this power with the territorial judge, will inspire confidence and friendship, and be really at the same time more secure against abuse.
The power of arresting deserted seamen seems necessary for the purposes of navigation and commerce, and will be more attentively and effectually exercised by the Consul than by the territorial judge. To this part of the Xth. article therefore, as well as to that which requires the territorial judge to assist the consul in the exercise of this function, we can accede. But the extension of the like power to passengers seems not necessary for the purposes either of navigation or commerce. It does not come therefore within the functions of the consul whose institution is for those two objects only, nor within the powers of a commissioner authorized to treat and conclude a convention solely for regulating the powers, privileges and duties of Consuls. The arrest and detention of passengers moreover would often be in contradiction to our bills of rights, which being fundamental, cannot be obstructed in their operation by any law or convention whatever.
Consular institutions being entirely new with us, Congress think it wise to make their first convention probationary and not perpetual. They propose therefore a clause for limiting its duration to a certain term of years. If after the experience of a few years it should be found to answer the purposes intended by it, both parties will have sufficient inducements to renew it, either in its present form, or with such alterations and amendments as time, experience and other circumstances may indicate.
The Convention as expressed in the French language will fully answer our purposes in France, because it will there be understood. But it will not equally answer the purposes of France in America, because it will not there be understood. In very few of the courts wherein it may be presented, will there be found a single judge or advocate capable of translating3 at all, much less of giving to all its terms legal and technical their exact equivalent in the laws and language of that country. Should any translation which Congress would4 undertake to publish for the use of our courts, be concieved on any occasion not to render fully the idea of the French original, it might be imputed as an indirect attempt to abridge or extend the terms of a contract at the will of one party only. At no place are there better helps than here for establishing an English text equivalent to the French in all its phrases: no persons can be supposed to know what is meant by these phrases better than those who form them, and no time more proper to ascertain their meaning in both languages than that at which they are formed. I have therefore the honour to propose that the Convention shall be faithfully expressed in English as well as in French, in two columns, side by side, that these columns be declared each of them to be text and to be equally original and authentic in all courts of justice.
This, Sir, is a general sketch of the alterations which our laws and our manner of thinking render necessary in this convention, before the faith of our country is engaged for its execution. Some of its articles in their present form, could not be executed at all, and others would produce embarassments and ill-humour to which it would not be prudent for our government to commit itself. Inexact execution on the one part would naturally beget dissatisfaction and complaints on the other, and an instrument intended to strengthen our connection might thus become the means of loosening it. Fewer articles, better observed, will better promote our common interests. As to ourselves, we do not find the institution of Consuls very necessary. Its history commences in times of barbarism and might well have ended with them. During these they were perhaps useful, and may still be so in countries not yet emerged from that condition. But all civilized nations at this day understand so well the advantages of commerce, that they provide protection and encouragement for merchant-strangers and vessels coming among them. So extensive too are commercial connections now become, that every mercantile house has correspondents in almost every port. They address their vessels to these correspondents, who are found to take better care of their interests and to obtain more effectually the protection of the laws of the country for them than the consul of their nation can. He is generally a foreigner, unpossessed of the little details of knowlege of greatest use to them. He makes national questions of all the difficulties which arise; the correspondent prevents them. We carry on commerce with good success in all parts of the world: yet we have not a consul in a single port, nor a complaint for the want of one, except from the persons who wish to be Consuls themselves.
Tho’ these considerations may not be strong enough to establish the absolute inutility of Consuls, they may make us less anxious to extend their privileges and jurisdictions so as to render them objects of jealousy and irritation in the places of their residence. That this government thinks them useful, is sufficient reason for us to give them all the functions and facilities which our circumstances will admit. Instead therefore of declining every article which will be useless to us, we accede to every one which will not be too inconvenient. Had this nation been alone concerned, our desire to gratify them might have tempted us to press still harder on the laws and opinions of our country. But Your Excellency knows that we stand engaged in treaties with some nations which will give them occasion to claim whatever privileges we yield to any other. This renders circumspection more necessary. Permit me to add one other observation. The English allow to foreign Consuls scarcely any functions within their ports. This proceeds in a great measure from the character of their laws, which eye with peculiar jealousy every exemption from their controul. Ours are the same in their general character, and rendered still more unpliant by our having thirteen parliaments to relax instead of one. Upon the whole I hope Your Excellency will see the causes of the delay which this convention has met with, in the difficulties it presents, and our desire to surmount them; and will be sensible that the alterations proposed are dictated to us by the necessity of our circumstances, and by a caution which cannot be disapproved, to commit ourselves to no engagements which we foresee we might5 not be able to fulfill.
These alterations, with some other smaller ones which may be offered on the sole principle of joint convenience, shall be the subject of more particular explanation whenever Your Excellency shall honour me with a conference thereon. I shall then also point out the verbal changes which appear to me necessary to accomodate the instrument to the views before expressed. In the mean time I have the honour to be, with sentiments of the most perfect respect & attachment6
RC (Arch. Aff. Etr., Paris, Corr. Pol., E.-U., xxxiii; Tr in DLC); in Short’s hand, signed by TJ; this and all other texts lack part of complimentary close (see note 6 below); brackets in MS. PrC (DLC). Dft (DLC); in TJ’s hand. PrC of Dft (DLC); at foot of text: “Montmorin Cte de,” not in Dft (see also note 1 below). Tr (DNA: PCC, No. 87, ii); in Short’s hand and attested by him; this copy was forwarded by TJ to Jay on 14 Nov. 1788. PrC (DLC). RC differs from Dft in spelling and punctuation , notably in the fact that in latter TJ employed capitals much more extensively than usual (such words as consul, consular convention, law, declaration, and certificate being capitalized by him in Dft but not by Short in RC); RC also contains a number of errors made by Short in transcribing (see notes 3, 4, and 6 below), constituting in this respect an exception to the generally high standard of his work as secretary (see also Document xii, notes 3 and 4 for other examples).
1. TJ corrected this word by overwriting “are” in Dft but not in its PrC, indicating that the correction was made after Short had prepared RC and before he made the Tr for Jay. This error occurred because TJ originally wrote “…in the several states, and the Law of nations is the rule,” &c., and then altered this by deletion and interlineation to read as above, but failed to pluralize the verb.
2. In Dft “ill humour” is deleted at this point.
3. This should read, as it does in Dft: “…translating it at all,” &c.; in preparing the Tr for Jay, Short corrected this error of omission.
4. Dft and Tr read “would,” but Short copied “should” and then corrected the error interlineally to read as above.
5. In Dft TJ first wrote “shall,” then deleted it and interlined “should,” and then changed his mind again and altered this to read as above.
6. In Dft the third syllable of this word serves as a catch-word at the bottom of the page, proving that the end of the complimentary close fell on another page; but Short ended his text of RC at this point, thus presenting TJ with an uncharacteristic close which he evidently signed without noticing the omission. All texts end at this point.